The Justice and Security Bill proposes legislation that will provide for “closed material procedure in relation to certain civil proceedings” and the prevention of “certain court orders for the disclosure of sensitive information”.
The Bill proposes that a body known as the Intelligence and Security Committee, comprised of members appointed by the Prime Minister, will oversee the activities of the Security Service, the Secret Intelligence Service, Government Communications Headquarters, and other government activities that relate to intelligence or security matters.
Under the proposed legislation, the Secretary of State would be able to apply to a court for a declaration that the proceedings of which it is seised are proceedings in which a closed material application may be made. A “closed material” declaration would preclude the disclosure of certain material other than to the court, appointed special advocates, and, where the Secretary of State is not the applying person, the Secretary of State. Such material could include any information in the hands of the security and intelligence agencies.
UK Government ministers argue that such provisions for secrecy are necessary to protect the UK’s intelligence-sharing relationship with the United States. Under the “control principle”, governments may determine how their intelligence is used once shared with another state. This issue was central to High Court proceedings concerning the treatment of Binyam Mohamed, who was rendered to Guantanamo Bay. The Court’s ruling that CIA information revealing that UK Secret Intelligence Services were aware of Mohamed’s ill-treatment should be disclosed provoked vehement protest and it was alleged that the US had threatened to withhold intelligence from the UK.
Critics have accused the Justice and Security Bill of seeking to conceal evidence of crimes committed by the UK Government. Director of UK civil liberties group Liberty, Shami Chakrabarti, has called the provisions a “toolkit for cover-ups”, and warned that the passing of the Bill would mark the end of the UK’s proud tradition of fair trials.
While acknowledging that the control principle may maintain effective working relationships between states, Mendez has countered that it could hinder attempts to suppress torture.
Speaking at UK think-tank Chatham House on 10 September, Mendez reported that he had voiced such concerns to the UK Government in the wake of its decision to suspend the Gibson Inquiry. The Gibson Inquiry was mandated to look at whether the UK was implicated in the improper treatment of detainees held by other countries. The Inquiry was suspended after police announced their investigation of the UK’s role in the rendition of Libyan dissidents and their families to Tripoli in 2004.